Post by account_disabled on Mar 4, 2024 8:34:50 GMT
Real estate transactions in Brazil are marked by misunderstandings and uncertainties when it comes to the collection of ITBI, a municipal tax that originates from acts that involve the onerous transfer of real estate and respective real rights, as well as the assignment of rights to their acquisition ( article 156, item II, of the Constitution). Although the Constitution and the National Tax Code (CTN) establish general rules and principles in tax matters, municipalities have the power to issue their own laws on taxes within their jurisdiction, which, in practical terms, means that they enjoy a certain autonomy in the construction of these regulations a fertile topic for debate. It turns out that this restricted field of discretion often results in the enactment of laws that conflict with the constitutional text and offend other tax regulations.
With this, the Judiciary is called upon to resolve controversies between the tax authorities and taxpayers, which creates an environment prone to debate and, thus, the construction of precedents. ITBI is no different. When judging Extraordinary Appeal No. 1,294,969 (Theme 1,124), the Federal Supreme Court rejected the thesis of the municipality of São Paulo in the sense EL Salvador Mobile Number List that the registration with a registry office of a purchase and sale commitment would be irrelevant for the purposes of defining the moment of tax incidence (temporal criterion). The tax authorities, in this case, wanted to demand the tax before the effective real estate transfer, that is, when the event generating the tax had not yet been completed.
Based on the constitutional text, the provisions of the CTN and the Civil Code, the STF defined the following thesis of general repercussion: "The event generating the ITBI only occurs with the effective transfer of real estate property, which takes place through registration" . The incidence of ITBI in future construction scenarios — a very common topic in real estate developments — is also the subject of intense debate in the Courts, since several municipalities differ as to the basis for calculating the tax. Precedents from the Superior Court of Justice converge in the sense of honoring the calculation of the tax only considering the market value of the ideal fraction of the land, in line with the statements of Precedents. The Court of Justice of Paraná decided in a similar sense when judging a case involving a real estate exchange contract in which the parties agreed on the future construction of a project.
With this, the Judiciary is called upon to resolve controversies between the tax authorities and taxpayers, which creates an environment prone to debate and, thus, the construction of precedents. ITBI is no different. When judging Extraordinary Appeal No. 1,294,969 (Theme 1,124), the Federal Supreme Court rejected the thesis of the municipality of São Paulo in the sense EL Salvador Mobile Number List that the registration with a registry office of a purchase and sale commitment would be irrelevant for the purposes of defining the moment of tax incidence (temporal criterion). The tax authorities, in this case, wanted to demand the tax before the effective real estate transfer, that is, when the event generating the tax had not yet been completed.
Based on the constitutional text, the provisions of the CTN and the Civil Code, the STF defined the following thesis of general repercussion: "The event generating the ITBI only occurs with the effective transfer of real estate property, which takes place through registration" . The incidence of ITBI in future construction scenarios — a very common topic in real estate developments — is also the subject of intense debate in the Courts, since several municipalities differ as to the basis for calculating the tax. Precedents from the Superior Court of Justice converge in the sense of honoring the calculation of the tax only considering the market value of the ideal fraction of the land, in line with the statements of Precedents. The Court of Justice of Paraná decided in a similar sense when judging a case involving a real estate exchange contract in which the parties agreed on the future construction of a project.